Complainant

Respondent

Parties

Keith  Troy

Mercury Engineering UC

Representatives

Mr. Anthony McIntyre , Independent Workers' Union

Mr. Hugh Hegarty, Construction Industry Federation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Protected Disclosures Act

CA-00062200-001

13/03/2024

The Complainant commenced employment on 12th July 2021. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly wage of €1,214.52.

On 13th March 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that he had issued a protected disclosure and suffered a detriment on foot of the same. In this respect, the Complainant stated that he reported a vehicle collision and thereafter was removed from an internal course and had some personal data withheld. By response, the Respondent disputed that the Complainant made a protected disclosure and submitted that he suffered no detriment whatsoever in the course of his employment.

In this regard, it is noted that the complaint form related to the “whistleblowers” section, with the “Criminal Justice Act 2011, being the legislation impleaded.As it was clear from the narrative section of the form and the Complainant’s submission that he intended to implead the Protected Disclosures Act, this had been amended for the purposes of the present decision. In so doing, it is further noted that no prejudice accrues to the Respondent in this regard.

A hearing in relation to this matter was convened for, and finalised on, 28th June 2024. This hearing was held in the Commission’s Carlow offices. On the day of the hearing, the Complainant present a written submission, while the Respondent issued a submission some days previous. The Complainant gave evidence in support of his complaints, while a HR Manager gave evidence in defense.

No issues as to my jurisdiction, apart from that listed above, were raised at any stage of the proceedings.

In evidence, the Complainant stated that he was involved in a road traffic accident. This accident occurred while the Complainant was a passenger on a bus provided by the Respondent to transport the Complainant and other employees to their work site. On that day, the Complainant reported the accident to his employers and stated that he had suffered an injury on foot of the same. By submission, the Complainant stated that this communication met the definition of a protected disclosure for the purposes of the impleaded Act. As a result of his injuries arising from this accident, the Complainant commenced a period of extended sick leave.

Thereafter, the Complainant submitted that he suffered penalisation at the hands of the Respondent. In particular, the Complainant stated that the Respondent removed him from a training course. In addition to the same, he submitted that the Respondent was withholding his personal data. Finally, the Complainant submitted that the Respondent took an inordinate amount of time to respond to the protected disclosure once the same was issued.

By response, the Respondent denied that the Complainant issued a protected disclosure at all. They further denied that the Complainant suffered any detriment that may be considered penalisation on foot of the same.

In this regard, they submitted that the Complainant reported a road traffic accident that occurred on one of their client sites. They submitted that the incident in question did not occur on the Respondent’s premises and the Respondent did not provide the transport in question. They submitted that the Complainant was entitled to report the incident, and was correct to do so, but that the Respondent did not engage in any wrong-doing on foot of the same.

Regarding the alleged act of penalisation, the Respondent expressed some confusion in respect to the claim being made by the Complainant. In this regard, they stated that the course referenced by the Complainant was a mandatory training that expires every two years. The Complainant was offered an opportunity to complete the same if required. The course in question finalised and will be run again in due course, at which point the Complainant is welcome to attend. The Respondent further stated that they complied with all data protection requests and issued a response to the Complainant’s grievance in due course.

Having regard to the foregoing, the Respondent submitted that the Complainant did not issue a protected disclosure and, without prejudice to the same, suffered no detriment in the course of his duties.

In the present case, the Complainant has submitted that he was penalised following his reporting of a protected disclosure. While the Complainant commenced a period of long-term sick leave from the date of the purported disclosure, he submitted that the Respondent penalised him by removing him from a training course, by failing to comply with a data protection request and by failing to respond to the issue itself as it was raised.

In order to be successful in such a complaint, a Complainant must demonstrate that they made a protected disclosure as defined by the Act. Thereafter, they must demonstrate that they suffered some form of detriment as defined. In circumstances whereby both these criteria are met, the Respondent will have to demonstrate that that the detriment did not arise as a consequence of the protected disclosure.

In this regard, In this regard, Section 3(1) of the Act defines “penalisation” as,

“…any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker”

The provision goes on to list seventeen potential forms of penalisation that are prohibited under the Act

Regarding the present compliant, much of the hearing related to a discussion as to the exact nature of the detriment alleged by the Complainant. In this regard, the Complainant stated that he was removed from a training course after the alleged protected disclosure was issued. By clarification, the Respondent stated that while the Complainant had been invited onto a training course, this related to standard health and safety training the Respondent organised on a periodic basis. They clarified that while the Complainant missed the previous session, they intended to conduct future sessions in due course, and the Complainant was free to attend the same. In such circumstances, the foregoing cannot form the basis of a complaint of penalisation under the Act. In addition to the same, the Complainant alleged that the Respondent failed to comply with a data protection request and during the hearing, he alleged that they failed to issue certain information to the department of social welfare. In evidence, a HR representative denied both these allegations, stating that all relevant information had been furnished to the Complainant or the relevant government department. As these complaints were not particularised beyond these allegations, I find that the Complainant has not established any form of detriment arising from the same. Finally, the Complainant has alleged that the Respondent failed to respond to his alleged protected disclosure at all. At the hearing, the Respondent opened their substantive response and the train of correspondence relating to the same. While the Complainant subsequently alleged that the Respondent delayed in providing this response, such a delay gave rise to no possible detriment on the part of the Complainant and cannot be said to form the basis of an allegation of penalisation.

Having regard to the accumulation of the foregoing points, I find that the Complainant has not demonstrated any adverse treatment that may give rise to a complaint of penalisation. In such circumstances the issue as to whether the Complainant issued a protected disclosure, which was disputed by the Respondent, is moot. As a consequence of the foregoing, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

Protected Disclosure, Penalisation, Detriment